Bills Digest no. 22 2007–08

WARNING:
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Bill.

The purpose of
the Bill is to amend the Classification (Publications, Films,
and Computer Games) Act 1995 to require that publications,
films or computer games that advocate terrorist acts be refused
classification, making it essentially illegal to sell or deliver
that material within Australia.

The National Classification Scheme is a
cooperative arrangement between the Commonwealth, states and
territories established by the Classification (Publications,
Films and Computer Games) Act 1995 (the Classification Act).
The Classification Act provides that the Classification Board
classifies films (including videos and DVDs), computer games and
certain publications. As part of the National Classification
Scheme, each state and territory has enacted classification
enforcement legislation that complements the Commonwealth
Classification Act. State and territory classification legislation
prescribes penalties for classification offences and provides for
enforcement of classification decisions in the particular
jurisdictions. [1]
The
National Classification Code contains descriptions about the
products which would fall within the classification types. For
example, the Code sets out the level of depiction of sex and
violence and other issues which would cause a film to be classified
as G, PG, M etc. The criteria for classification are also contained
in the
Guidelines for the Classification of Films and Computer Games
and the
Guidelines for the Classification of Publications.

Classification decisions are made by the
Classification Board and, on appeal, reviewed by the Classification
Review Board (the Boards). The Classification Board makes about
10,000 decisions a year and the Review Board generally makes about
20. [2] Section 11 of
the Classification Act sets out some broad principles the Boards
are to consider in classification. These include:

adults should be able to read, hear and see
what they want

minors should be protected from material likely
to harm or disturb them

everyone should be protected from exposure to
unsolicited material that they find offensive, and

the need to take account of community concerns
about:

depictions that condone or incite violence,
particularly sexual violence, and

the portrayal of persons in a demeaning manner.

Refused classification

Under section 9 of the Classification Act,
publications, films and computer games must be classified in
accordance with the National Classification Code and Guidelines.
The National Classification Code provides that certain types of
publications, films and computer games must be refused
classification. Materials which are classed as Refused
Classification are effectively banned since under state and
territory laws it is prohibited to sell, distribute or publicly
exhibit materials which have been refused classification.

The existing provisions of the Classification
Code provide that material must be refused classification if,
amongst other things, it promotes, incites or instructs in matters
of crime or violence.

On 1 May 2007, the Attorney-General s
Department released a discussion paper [3] which outlined proposed amendments to
the Classification Code and the Classification Guidelines. The
amendments proposed in the discussion paper were premised on the
assertion that the existing grounds for refusing classification are
not sufficiently clear to ensure that material which advocates the
doing of a terrorist act is denied classification. As already
noted, the Code currently requires that material be refused
classification if it promotes, incites, or instructs in maters of
crime or violence.

The existing grounds for refusing
classification were claimed to be inadequate the paper pointing to
a combination of public concern about various material available as
books, DVDs or on the internet; the differences of interpretation
in Board and Review Board review decisions which overturn Board
decisions applying the same criteria to the same material; and
litigation in the Federal Court over the interpretation of the
phrase. [4] The paper
states:

Arguably, terrorist acts are of sufficient
concern and pose such potential danger to the community that
material that advocates people commit them should be specifically
identified for refusal of classification. The classification scheme
should be clear enough that the impressionable and vulnerable in
the community are protected from material which encourages people
to carry out acts of terrorism through techniques such as praising
terrorist acts or issuing calls for action based on ideological or
religious duty. [5]

The specific changes suggested in the
discussion paper were an amendment to the Classification Code to
add a new and distinct ground for refusing classification for
material that advocates the doing of a terrorist act; and
amendments to the relevant Classification Guidelines to define the
terms advocates and terrorist act in terms which mirror the
Commonwealth Criminal Code.

The Department received 25 submissions from
members of the public and various organisation. The submissions can
be found at the Department s website: www.ag.gov.au.

As noted above, the Classification Scheme is a
cooperative national scheme. Amending the Classification Code and
Guidelines requires the cooperation and agreement of the states and
territories (sections 6 and 12 of the Classification Act). If the
state and territory governments and the Commonwealth
Attorney-General agree on amendments, then the code and guidelines
would be taken to be amended and the Bill would not be required.
Anticipating that such cooperation is unlikely to be secured, the
Commonwealth Attorney-General introduced the current Bill. It is
designed to achieve the same reforms as those proposed in the
discussion paper, but by way of direct amendment to the Act. In
this way the Government is not dependent on approval by the states
and territories.

At the Council of Australian Governments
(COAG) meeting in July 2007, the states and territories did not
agree to amendment of the Code, [6] and the Commonwealth Attorney‑General
subsequently indicated that the government would go ahead with the
Bill. [7]

Item 2 of Schedule 1 amends
section 9 the Classification Act to read: 'Subject to section 9A,
publications, films and computer games are to be classified in
accordance with the Code and the classification guidelines.' The
effect is that even before material is assessed according to the
requirements of the Classification Code and Guidelines, it must be
refused classification under section 9A of the Act if it advocates
the doing of a terrorist act .

Proposed subsection 9A(1) of
the Bill requires that a publication, film or computer game that
advocates the doing of a terrorist act must be classified as
'Refused Classification'.

Proposed subsection 9A(2)
defines 'advocates' using an adapted version of the definition in
Schedule 1, subsection 102.1(1A) of the Criminal Code Act
1995 (Criminal Code). A publication, film or computer game
advocates the doing of a terrorist act if:

a) it directly or indirectly counsels or urges
the doing of a terrorist act

b) it directly or indirectly provides
instruction on the doing of a terrorist act, or

c) it directly praises doing a terrorist act
where there is a risk that such praise might lead a person
(regardless of his or her age or any mental impairment) to engage
in a terrorist act.

It is paragraph c) that has been considered
the most problematic by those with concerns about the Bill. Further
discussion of this provision is provided below under Position
of significant interest groups. For a full discussion of the
criminal code provisions see the
Review of Security and Counter Terrorism Legislation
Parliamentary Paper no.: 423/06.

Proposed subsection 9A(3)
provides for exceptions. It is an addition made in response to
concerns raised with the discussion paper discussed above. It
limits this definition of terrorist act by providing that material
will not be regarded as advocating the doing of a terrorist attack
if it depicts or directly describes a terrorist act but the
depiction or description could reasonably be considered to have
been done merely as part of public discussion or debate or as
entertainment or satire. The Explanatory Memorandum provides
examples.

Proposed subsection 9A(4)
adopts the definition of 'terrorist act' directly from subsection
100.1 (1) of the Criminal Code Act. In essence, the Criminal Code
defines 'terrorist act' as an action or threat of action that is
done with the intention of advancing a political, religious or
ideological cause and is also done with the intention of coercing
or influencing by intimidation any government, the public or a
section of the public. Subsection 100.1(2) of the Criminal Code
outlines additional criteria which must be met for a threat or
action to meet the definition of 'terrorist act'. Specifically the
threat or action must have the intention or effect of:

causing serious physical harm or death

causing serious damage to property

creating a serious risk to the health or safety
of the public or a section of the public, or

The effect of the amendments in Schedule 1 is
that decisions made by the Classification Board and Review Board,
under proposed section 9A to classify a particular publication or
film as RC, would then be enforced as any other RC decision is
enforced under state and territory legislation. For example it is
an offence under state and territory law to sell an RC publication
or to publicly exhibit an RC film. Those restrictions and offences
would automatically apply to these decisions.

On 21 June 2007, the Senate referred the Bill
to the Standing Committee on Legal and Constitutional Affairs
(Senate Committee) for inquiry and report [8] by 30 July 2007. The Committee received
22 submissions, 16 critical of the Bill and six supporting its
passage with two of the six arguing for a strengthening of the
provisions.

In its report, the Committee noted that a
common concern in submissions was the definition of advocate . It
is problematic in requiring the Classification Boards to refuse
classification to material praising terrorist acts where there is a
risk that the praise may lead to a person, regardless of age or
mental impairment, engaging in a terrorist act. [9]

The Senate Committee recommended that the Bill
be passed subject to an amendment deleting the requirement that the
threshold test for determining whether material advocates terorrist
act be based on its influence on the young and the mentally
impaired.

The Committee recommended that the Bill be
amended to delete from paragraph 9(A)(2)(c) the following
words:

(regardless of his or her age or any mental
impairment (within the meaning of section 7.3 of the Criminal Code)
that the person may suffer) [10]

the intended implications of the amendments are
unclear and have not been plainly and consistently stated,
and

the amendments seek to rely on definitions used
in the Criminal Code, which have already been the subject of
substantial criticism because they are overly broad and vague.
[11]

In their submission, the Law Council notes that
the Security Legislation Review Committee, the Parliamentary Joint
Committee on Intelligence and Security, and the Senate Legal and
Constitutional Affairs Committee have all recommended the amendment
of section 102.1(1A) of the Criminal Code which defines advocates
and is the equivalent of proposed subsection 9A(2).

All three Committees recommended that, at the
very least paragraph (c) of the definition should be amended to
require a substantial risk (rather than just a risk) that
the praise might lead someone to engage in terrorism.

The Law Council makes a further point that by
proceeding with the Bill, the Federal Government is subverting the
cooperative National Classification Scheme by circumventing the
Classification Code. This Scheme has worked well since its
introduction in 1996 and the Law Council believes Parliament should
be loathe to jeopardise it in order to give effect to reforms which
have not been shown to be necessary. [12]

The Gilbert & Tobin Centre of Public Law
from the University of New South Wales states that while
understanding and sharing the policy grounds underpinning efforts
to refuse classification to material advocating terrorism it
believes that can be accomplished under the Classification Code as
it presently stands. Their concern is that the proposed amendment
will not provide the certainty which is claimed and in fact, the
converse is true. They argue:

It is much simpler to identify speech which
encourages the doing of crime or violence than specifically a
terrorist act , given the lengthy and complex definition, including
motivational elements, which supports the latter. The use of
advocacy is rendered problematic because of its inclusion of praise
a far vaguer standard than promotes or incites . The debates which
accompanied the introduction of those definitions into the Criminal
Code and their subsequent review show that there are very real
difficulties in their potential application. Those experiences
should be drawn upon before moving to add those terms into the
Classification Code. [13]

The Centre concludes:

Lastly, these amendments have the potential to
uncomfortably politicise the work of the Classification Board and
Classification Review Board. This is due to the particular
characteristics of terrorism as an element in broader political and
societal conflict. The advantage of restricting classification to
material purely on the basis of its connection to criminality or
violence (the existing ground) is that the Boards will still be
able to effectively control access to material which may have the
effect of promoting crimes of that nature. They will be spared the
contentious and difficult task of identifying sides in a particular
conflict as being associated with terrorism, which these amendments
would potentially require. In particular cases that may produce an
unacceptable intrusion upon free political speech. [14]

The Australia/Israel and Jewish Affairs
Council supports the Bill but would like the Government to go
further and address the issue of hate material. [15] It argues:

While it is true that other legislation governs
such material, this legislation relies generally on civil action,
and often takes years to resolve...While these cases await
resolution, the materials in question are freely available. Some
hate material may preach, for example, that certain sections of the
community are the enemy of certain other sections or of all other
people, or that they deserve death or damnation while not
advocating a terrorist act even under the proposed definition. Such
material may, especially cumulatively, generate incitement to
terrorist acts. We have seen, for example, how second generation
immigrants in the UK have become radicalised over time and formed
home grown terrorist cells. We believe that such extreme hate
material should also be refused classification, even though it
would probably not be said to advocate a terrorist act, as the
effect may ultimately be the same. [16]

In response to this suggestion, the
spokesperson from the Attorney-General s Department at Senate
Committee hearings stated that the decision was taken that this
Bill is the appropriate point to set the balance between freedom of
expression and removing material that should not be there. Some
material, while it may be extremely unpleasant and/or offensive, is
nevertheless not material that should be censored. [17]

The Festival of Light supports the Bill and
sees it as a reasonable measure in contributing to the prevention
of terrorist acts being committed. However the Festival of Light
notes that the provisions in themselves will not adequately protect
the Australian community from material that advocates terrorist
acts as any such material available electronically outside
Australia will still be available from within Australia. It
therefore argues that the Government should implement a mandatory
filtering system at either national or ISP level which would allow
the blocking of access to all offshore websites which host content
which is material advocating terrorist acts. [18]

The Classification Review Board, in giving
evidence to the Senate Committee, noted that its role is not to
comment on policy. However the Board does have some concerns
regarding how it might apply proposed section 9A because of the
complexity of the definitions and the intricacy of the proposed
criteria. Ms Maureen Shelley, Convenor of the Classification Review
Board, stated:

To ensure consistency and that an objective test
is applied, it seems probable to me that the review board [ ] would
refuse classification to any material that praised a terrorist act.
Otherwise the review board would need to make an assessment of
risks, including that at the lowest level. It would have to
formally decide that there was a risk, no matter how slight, and
whether a minor or a person with a mental impairment might be
affected by that material. [19]

Ms Shelley stated the test is a very different
test to the reasonable persons test or a reasonable person test
because it requires the Board to consider not what a reasonable
adult would do but what a person who is presumably unreasonable and
not an adult would do:

I do not know how on earth you could objectively
assess what an unreasonable person who is not an adult might
do.

Ms Shelley suggested that if Parliament would
prefer that the Boards assess the risk of someone engaging in a
terrorist act, perhaps the risk should be qualified with the words
substantial or significant . In that case, only material that
praises terrorist acts and carries a substantial or significant
risk would advocate terrorist acts. [20]

The Review Board also envisages difficulties
with the definition of a terrorist act . As it comes from the
Criminal Code, it has multiple elements and requires a detailed
consideration of the nature of the action. The Boards, of which
members are drawn from the community and are not required to be
trained lawyers, might not have evidence of some of these elements
and might have limited means of investigating them. [21]

In response, Ms Davies, Assistant Secretary,
Classification Policy Branch, noted there are ongoing interpretive
difficulties with the existing provision and that Federal Court
cases have not managed to shed any significant light on the scope
of that provision.

Ms Davies commented that what the new
provisions are aimed at addressing is material that will act upon
the impressionable and upon people who are not adults. Ms Davies
also argued that the Attorney-General s Department does not agree
that all material that praises terrorism will be refused
classification. In particular, there will be praise that falls
within the descriptors in proposed subsection (3) and where, on any
reasonable consideration of the material, there is simply no risk
that someone will be led to commit a terrorist act by viewing it.
[22]

In relation to adding the words substantial or
significant risk rather that just a risk, the Attorney-General s
Department argued that to do this would be to have a different
meaning for advocates in this context than it has in the context of
the Criminal Code, and the government s view is that it would not
be helpful in a whole range of ways to start to use this language
with different meanings in different contexts. [23]

The Department also noted that the existing
criteria for using Refused Classification (ie material that
promotes, incites or instructs in matters of crime or violence) is
not limited to material that will act on an adult. The new criteria
falls into that same category. It is too serious to be simply
restricted; it should not be available to anyone. [24]

HREOC in their submission on the discussion paper
states that it is not convinced of the necessity for the
legislation and argued that the proposal be reconsidered. At a
minimum HREOC submitted that the definition of advocate a terrorist
act be amended to:

require that there is a substantial risk (not
merely a risk) that the praise might lead a person to engage in a
terrorist act, and

delete the reference to regardless of age or
any mental impairment. [25]

The New South Wales Council for Civil
Liberties (CCL) believes the Bill is unnecessary and is an
ineffective restriction on freedom of speech. CCL notes the
problems of adopting from the Criminal Code the definitions of
advocates and terrorist act arguing that these definitions will
produce absurd and unwanted results. [26]

In its submission regarding the discussion
paper, the University indicated that it shares the
Attorneys-Generals concerns about terrorism. However it argues that
national security requires a sophisticated understanding of
terrorist movements as well as measures to obstruct their
recruitment. Any measures to restrict access to publications
advocating terrorism should therefore ensure that such publications
remain available for teaching and research purposes. [27]

Shadow Attorney-General, Senator Joe Ludwig,
has indicated that Labor broadly supports moves to better deal with
material that advocates terrorism stating that publications, DVDs
and the like where extremists are inciting hate and pushing
extremist views to encourage violence are unacceptable. In the
Senate Committee inquiry, the Labor Party Senators supported the
recommendation to pass the Bill.

The Australian Democrats, in their dissenting
report on the Senate Committee inquiry into the Bill stated that
that the Australian Democrats oppose the Bill. Their objections are
that it undermines Australians right to freedom of speech and
further, the Australian Government should not be legislating in
this area on constitutional grounds. Should the Bill be passed, the
Democrats would then move amendments so as to narrow the scope of
the materials which can be censored and introduce more objective
tests, and would provide an exemption so that individuals may apply
to the Review Board to access potentially banned material for
educational purposes.

The dissenting report concludes:

The Democrats do not believe that sufficient justification has
been provided for the extended and unprecedented powers the
government is seeking under this legislation.

In the absence of evidence supporting this Bill as a
proportionate response to terrorism, the Democrats consider that
the current Classification laws are adequate.

This Bill should not be passed without a balance
being struck between the security imperative and the need to
preserve civil liberties and safeguard human rights. This Bill
should be rejected. [28]

The Explanatory Memorandum states it is not
expected that there will be any significant financial impact.

Conclusion

The Bill is notable in breaking with the
cooperative classification scheme that has operated between the
states, territories and the Commonwealth since 1996. The
Attorney-General, the Hon. P. Ruddock, argues that the failure of
the states and territories to recognise the need to do everything
possible to stop the recruitment of the impressionable and
vulnerable into terrorist activity, left him with no choice but to
act independently. [29]

There is, however, a
powerful and persuasive lobby of concern about the Bill coming
from prominent legal, human rights, educational, cultural and media
groups. While understanding the intrinsic policy grounds
underpinning efforts to refuse classification of material
advocating terrorism, the group in general argues that this can be
accomplished under the Classification Code as it presently stands.
The group shares concern about the drafting of the provisions in
the Bill and its reliance on definitions from the Criminal Code
which have already been the subject of substantial criticism for
being overly broad and vague. The Classification Review Board, one
of the bodies responsible for interpreting the proposed provisions,
believes the Board will have difficulty interpreting them as
currently drafted. Those from the academic community argue that at
the very least a special exemption should be made for academic
research and human rights groups, such as HREOC, believe the
provisions have freedom of speech implications.

It would seem that the Bill presents
Parliament with a difficult task of getting the right balance
between doing its utmost in ensuring a protection of freedom of
speech, while at the same time being able to stem the flow of
material advocating and inciting terrorist actions against the
Australian community.

Endnotes

[1]. Office of Film and Literature Classification, Annual
Report for the Classification Board and the Classification Review
Board, 2005 2006, pp. 9 10.

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